Colorado Court: Marijuana Scent Does Not Give Police Right to Search Vehicles

Because there is a distinct possibility that a drug-sniffing dog could alert to “legal marijuana” during a roadside shakedown, the Colorado Court of Appeals ruled last week that law enforcement agencies could no longer lean on their K9 companions in an effort to establish probable cause for search.

According to the Daily Sentinel, a three-judge panel determined last Thursday that law enforcement officers needed more than a weed-sniffing hound to search a person’s vehicle without permission.

The verdict, which establishes a new precedent in drug cases, could force the state to put its drug dogs through “extinction training” in order to teach them that the presence of cannabis no longer indicates criminal activity.

“Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana—but not specific amounts—can reveal only the presence of ‘contraband,’” wrote Judge Daniel Dailey on behalf of the panel.

“A dog sniff could result in an alert with respect to something for which, under Colorado law, a person has a legitimate expectation of privacy,” Dailey continued. “Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should now be considered a ‘search’ for purposes of (the amendment) where the occupants are 21 years or older.”

The verdict stems from a 2015 case in which Craig Police Cpl. Bryan Gonzales pulled over a truck driven by a local resident by the name of Kevin McKnight. This was the second traffic stop in two months that Craig police conducted against McKnight to bust him for illegal drugs.

On this particular day, Gonzales stopped McKnight for failing to use his turn signal, which eventually prompted officers to turn a drug dog named “Kilo” loose on his vehicle.

Kilo, like most of the dope-sniffing pooches in Colorado, is trained to sound off the second it detects the scent of cocaine, ecstasy, heroin, marijuana and methamphetamine.

During the search, police found a glass pipe that they determined was used to smoke meth.

Although McKnight’s attorney fought to have the evidence tossed out of court, a Moffat County District judge would not allow it. McKnight was eventually convicted of possession of a controlled substance and possession of drug paraphernalia.

In 2016, the Colorado Supreme Court handed down a verdict suggesting that, “the odor of marijuana is still suggestive of criminal activity.” But there must be other factors in place before police can conduct a search.

In this case, the appeals court sided with McKnight, saying the cops had no idea what kind of drugs the K9 unit was alerting to. And since the dog could have been responding to marijuana, a legal substance in Colorado, they had no legal right to initiative a search.

The verdict has led to the reversal of McKnight’s conviction and rendered the state’s current K9 force obsolete. Despite talks about “extinction training,” there is not much evidence that drug dogs can be retrained.

In fact, according to K9 Consultants of America, an organization that works with law enforcement to train Police Service Dog teams, it is unlikely that a drug dog can be taught “not” to smell marijuana once it has already been trained to track down the substance in the field.

“Marijuana extinction training is not going to be very effective because you have highly taught the dog to respond to that substance,” Steven D. Nicely, owner of K9 Consultants, told Reset. “When you do the extinction training, you don’t know when spontaneous recovery is going to recur. As a result, the dog responds and you end up searching someone that has marijuana, but is in legal possession of it, so now you’re searching someone who’s not violating the law.”